Conduct Related Summary Dismissal and the EDT

Heard in the EAT, Lancaster & Duke Ltd v Wileman considered if the effective date of termination of Ms Wileman could be extended by the statutory notice period under s.97(2) ERA 1996.

Ms Wileman was dismissed summarily for gross misconduct with no investigation, no hearing and no appeal. The misconduct related to rude and difficult behaviour. Ms Wileman was two days short of the two years continuous employment threshold and sort to reply on s.97(2) to extend her EDT.

Ms Wileman submitted a claim for unfair dismissal seeking to rely on s.97(2), which provides that where an employer dismisses an employee with less than the statutory minimum period of notice required by s.86 ERA 1996, the EDT is deemed to be the date on which the statutory notice have expired.

In the first instance case in the ET, the Tribunal applied s.97(2), extended her EDT and found in favour of her unfair dismissal complaint. The Tribunal did not make a finding as to whether Ms Wileman was guilty of gross misconduct or not. A finding on this point was not necessary as she had not brought a claim for wrongful dismissal, only unfair dismissal.

On appeal to the EAT, it was held that the EDT of an employee who was guilty of gross misconduct and summarily dismissed could not be extended by the statutory notice period under the s.97(2). The EAT found that the minimum notice periods in s.86 are subject to s.86(6) which preserves an employer’s right to treat a contract as terminable without notice because of the employee’s conduct. Therefore an dismissed for gross misconduct is not entitled to statutory notice and thus cannot extent their EDT by a period of statutory notice and thus cannot extent their EDT by a period of statutory notice to which they are not entitled.

The issue of Ms Wileman’s conduct amounted to gross miscount was not considered by the EAT and was remitted back to the ET for a finding to be made.

Comment

This decision sets out that a Tribunal will consider if an employee was justified in dismissing an employee without notice before making a finding on whether the EDT can be extended or not. An employee will only be able to rely on s.97(2) when an Employer dismissed them without notice when the employer was entitled to do so.

If you require further information on the above development please do not hesitate to get in contact with a member of the Employment Team.